[Redacted], Chasity H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2021004229 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chasity H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004229 Hearing No. 420-2020-00164X Agency No. ARANAD19JUL02582 DECISION On July 20, 2021,2 Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency’s Anniston Depot in Alabama. On September 19, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African- American), sex (female), and age (1977) when: 1. on July 9, 2019, the Supervisor denied Complainant’s request to work overtime on the shop floor, stating that “no secretaries can work overtime on the shop floor because of the requirement to have a physical” and the Deputy Director stated that 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 We note that Complainant prematurely submitted her appeal following receipt of the AJ’s decision. However, the Agency issued its final Agency decision on July 21, 2021. While Complainant's appeal was premature when filed, it is now cured and ripe for adjudication. 2021004229 2 secretaries do not have workloads requiring them to work overtime, despite another secretary working overtime at the time of Complainant’s request. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On September 21, 2020, following the Initial Conference with the AJ, the AJ approved of Complainant’s Motion to Amend and add additional claims of discrimination on the bases of race, sex, age, and reprisal for her prior protected activity when: 2. on January 15, 2020, the Supervisor sent an email to employees notifying employees they could no longer park in the main parking lot in front of building 474 but must now park according to the designated parking plan, but Complainant, and the spot she normally parked in was marked with a placard designed for Government Vehicle Parking only, while a white female was permitted to park in the same parking spot with no repercussions; and 3. on April 2, 2020, the Supervisor informed Complainant her computer and another employee’s computer were taken in order for it to be scanned for a potential virus, but she discovered the other employee’s computer had not been taken, and she learned that her computer had been taken so that it could be scanned for illegal activity. On December 4, 2020, the Agency submitted a motion for a decision without a hearing (Motion). Complainant responded, and the Agency countered. On June 14, 2021, the AJ issued the Decision and Order Entering Judgment. The AJ determined that Complainant failed to establish a prima facie case of discrimination based on her race, sex, or in reprisal. Even she had, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the AJ determined that overtime was not approved for any secretary and that Complainant could not work on the shop floor because she did not have a physical. The AJ also noted that the comparative coworker was not suitable. There were extenuating circumstances surrounding the coworker’s additional hours. Specifically, that the position had been vacant for some time and the additional hours, over the course of a week, were meant to catch up on overlooked tasks. Notably, the comparator did not obtain overtime but instead received compensatory time for hours worked. The AJ also noted that the initial approval of overtime only occurred due to a mistake made by the Deputy Director and that it did not happen again. 2021004229 3 Regarding claim 2, the AJ found that the plan was equally enforced upon all employees. Lastly, concerning claim 3, the AJ determined that Complainant’s laptop was searched because management suspected that Complainant was conducting non-work business during business hours. The AJ further determined that none of the Agency’s actions, either alone or collectively, constituted conduct that was sufficiently severe or pervasive, or were likely to deter further protected activity, that it would rise to a level of prohibited harassment. Accordingly, based on the record, the AJ issued a decision of summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Both Complainant and the Agency provided appellate statements. On appeal, Complainant reiterates previously made arguments outlining her belief that she was subjected to discrimination and retaliation. Complainant asserts that the Agency routinely failed to follow its own policies and procedures. For example, Complainant asserts that other secretaries routinely requested, and were approved for overtime; and the Deputy Director was a seasoned manager who would have known about the Agency’s overtime policies. Complainant argues that the failure to abide by the policies across the board merely demonstrated that she was treated differently due to her protected classes and in reprisal. Complainant asserts that the record clearly demonstrates that she established a prima facie case of discrimination and that the Agency’s articulated legitimate, nondiscriminatory reasons were merely pretext for discrimination. In response, the Agency provides an appellate brief similar to its Motion, requesting that the Commission affirm its decision to implement the AJ’s no finding of discrimination. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. 2021004229 4 Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021004229 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 17, 2022 Date